Journal of Information, Law and Technology

Using Copyright to Prevent Intrusive Photography

Joanna Gretton
Barrister
Lancaster Buildings, Manchester

This is a work in progress article published on: 30 October 1998 

Citation: Gretton J, 'Using Copyright to Prevent Intrusive Photography', 1998 (3) The Journal of Information, Law and Technology (JILT). <http://www.law.warwick.ac.uk/jilt/98-3/gretton.html>

1. Introduction
The publication of intrusive photography is not a new phenomenon. Back in 1927, after his solo flight across the Atlantic, Charles Lindbergh found himself the subject of intense media interest the likes of which had never previously been seen. The use of harassing and in some instances offensive tactics by photographers are not new either. In 1932 Lindbergh's son was murdered and photographers broke into the funeral home to photograph the body. However, the activities of these photographers or 'paparazzi' are increasing as the public appetite and demand for such photographs and associated stories reaches levels previously unseen. It seems that a media ethic has developed which treats real lives as soap opera, daily fiction to be reported for the entertainment rather than the edification of the public.

2. Protection of Privacy
Worldwide, the campaign for the protection of privacy is growing; intrusive photography is one area which appears to pit the privacy of the individual against freedom of information and the freedom of the press. Such a debate is ongoing in the US. Two American television stars Paul Reiser and Michael J Fox have testified to the Congress Judiciary Committee to the dangerous and intrusive conduct of photographers including chasing by foot and car and home surveillance. Fox told the panel that photographers had intruded at his father's funeral and entered a hospital to take photographs of his new born son.

Current legislation regarding the protection of Human Rights, for example the European Convention on Human Rights ("ECHR") soon to be enacted in the UK by the Human Rights Bill, protects both rights equally. When the privacy debate is couched in terms which imply a conflict between the two rights little guidance is available to indicate which should prevail, although common sense and morality would suggest that privacy should be paramount in circumstances where it can be argued that common sense and morality indicate that privacy is justified. This would depend on various factors including whether the individual was in a public or private place; whether the individual's behaviour was legal/illegal or even moral/immoral; and to a certain extent whether the individual was a public figure or not. It is all a question of knowing where to draw the line. It is understandable then that most elements of the media see privacy rights as an indirect form of the censorship which they fear and quite rightly oppose. The people who are most strident regarding the protection of their privacy are rich and powerful who can use the excuse of infringement of privacy to hide wrongdoing. Jonathan Aitkin's ringing attack on journalism at the start of his libel action was shown to be a fraud by good investigative journalism and the Press are rightly suspicious that a person in the public eye who seeks privacy is likely to have something to hide. 

But the demands of tabloid newspapers extend attacks on privacy far outside the scope of investigation into newsworthy stories. Photographs of celebrities going about their ordinary lives now fill the pages of magazines on supermarket shelves. While a great number of celebrity's court publicity to further their careers the real money for photographers arises from capturing major celebrities at unguarded moments. These intrusive photographs can cause great distress to the celebrities and their families. 
In the UK most people would be aware of the nature of intrusive photography from the experiences of the Royal Family. A specific example might include the photographs taken in the gym of the late Princess Diana, who spent her adult years being hounded by photographers as the world's most photographed woman. Her brother, Earl Spencer, is currently involved in litigation regarding invasion of his former wife's privacy. He attended a small closed meeting last December at the London School of Economics organised by Alistair Kelman, barrister and Visiting Fellow of the LSE. Two proposals were made at the meeting for legislative change with the intention of preventing intrusive photography.

3. Proposals for Legislative Change
The first, from Alistair Kelman, had originally been proposed by him on the BBC World at One the day following the death of Princess Diana. It was aimed to destroy the commercial viability of the market in intrusive photography by breaking the link between the money and the photograph - to "follow the money", as the Americans would say. By amendment to the Berne Convention on Copyright (certain aspects of which are currently under review) a registration system would be established. The moral rights of the photographer would still be protected but automatic economic copyright would be abolished. Under Kelman's proposals the photographer would be required to register the photograph to secure his economic copyright. A copy of the photograph would be deposited by the photographer at a Web Site together with a declaration that the photograph was genuine, taken by him and was not intrusive. For these purposes a photograph would be considered intrusive if: (i) the subject(s) of the photograph had not consented to the taking of the photograph; (ii) the photograph showed a scene where privacy might reasonably be expected and desired; and (iii) the paramount purpose of the taking of the photograph was not to illustrate a 'hard news' story. 'Hard News' would be defined as news concerning war, terrorism, racketeering, corruption, crime, criminality, social documentary, natural disaster or other similar newsworthy events.

A photographer making a false declaration and receiving money or moneys-worth for the photograph would be liable to prosecution for obtaining a pecuniary advantage by deception (section 16 Theft Act 1968) or obtaining property by deception (section 15 Theft Act 1968) and might then face confiscation of monies received. A publisher would be free to publish any non-registered photograph whether intrusive or not. The moral rights of the photographer could be asserted and acknowledged but no consideration could be given. On publication of a non-registered photograph the circumstances of the publication and the reasons for the taking of the photograph could be investigated. The publisher would be required to prove that no money or moneys-worth had changed hands. Failure to provide a reasonable explanation would lead to a rebuttable presumption that payment had been made. Fines could be imposed and in serious cases amounts in the region of a week's gross receipts could be demanded. Such an investigation is analogous to the investigations undertaken by the Securities and Exchange Commission in the US in investigating insider dealing.

However, in the course of the closed meeting at the LSE a second proposal was put forward by a copyright industry insider who wished to remain anonymous. This impacts on the publication of intrusive photographs by the granting of the same rights as are given to the commissioner of a photograph, to the subject of an intrusive photograph. By amendment to section 85(1) of the Copyright, Designs and Patents Act 1988 ("CDPA"), the subject of an intrusive photograph or film would have the right not to have

(a) copies of the work issued to the public;
(b) the work exhibited or shown in public;
(c) the work broadcast or included in a cable programme service.

The insider said he expects that a fourth provision, (d) the work made available to the public, will be added as part of the implementation of the new WIPO treaty.

A new section, 85(3), would define an intrusive photograph or film as one which depicts its subjects engaged in lawful activities on private premises or in a private vehicle, vessel, hovercraft or aircraft and has been taken without the consent of either the subjects or the driver of the vehicle or the master of the vessel, hovercraft or aircraft.

The advantages of the second proposal over the first are that new legislation would not be needed on an international level, the CDPA could be amended by Statutory Instrument. No new body would need to be established to police the system, as it would be the responsibility of the subject to issue infringement proceedings. However, the second proposal is limited to preventing the publication of intrusive photographs within the UK only, unless it is also implemented as an amendment to the Berne Convention, it does not give protection to the subject in a public place and no exemption exists for intrusive photographs taken for the purposes of investigative journalism to be published to illustrate the story.

Both proposals aim reform at the publishing rather than the taking of the photograph. In the US the opposite is true, the Privacy Protection Bill and the Protection from Personal Intrusion Bill are currently being considered by the Congress Judiciary Committee. The Bills address the taking of an intrusive photograph. Persistent chasing or following will become a federal crime and unusual trespass elements will be incorporated. A photographer who takes an intrusive photograph from public property using long-range lenses or another such device will be trespassing if he could have only taken the photograph without the device from private property. Opponents of the Bills claim that the proposed laws are unnecessary in that a federal offence will be made of activities which are already protected by state and local endangerment laws. For instance, two British photographers were recently convicted by a Californian court for their attempts to photograph Arnold Swarzenegger and his wife Maria Shriver. Its opponents also claim that serious First Amendment issues are raised, even though it is explicitly stated that the publication of any material, even if illegally obtained, is legal. The supporters of the Bills include celebrities whose interest stems from the harassment they and their families have been subjected to. In testimony to the panel, actor Michael J Fox denied that a 'Faustian bargain' had been struck whereby public figures had become fair game at all times anywhere, even in their own homes.

In US libel law, celebrities are entitled to a lesser degree of protection than that afforded to ordinary citizens. The question arises whether this should also be true of privacy laws. The Canadian Supreme Court recently made this point. The case concerned a photograph taken of an ordinary person outdoors and the court held that the photograph violated the subject's right to privacy. The Court said "the artistic expression of the photograph ... cannot justify the infringement of the right to privacy it entails" but went on to say "certain aspects of a private life of a person who is engaged in public activity .. can become matters of public interest".

A much overlooked speech by the Lord Chief Justice on Human Rights in the New Millennium referred to a German privacy case. This case concerned Princess Caroline of Monaco. Photographs of her were taken while she was dining with a male friend on what appeared to be a romantic occasion in a corner of a restaurant garden in France. Considering the decision that the Princess' privacy had been violated, Lord Bingham said "It would appear that under German law a person in the position of Princess Caroline is in general entitled to privacy in respect of things done in private, or in exceptional circumstances things done in public". Exceptional circumstances arise where the subject made it clear they had retreated to a place of seclusion.

As has been said and as the Canadian case illustrates, it is not only celebrities whose privacy needs protection. In Hong Kong, Data Protection laws served to protect a student who had been videotaped without consent. The Personal Data (Privacy) Ordinance prohibits the collection; duplication and use of images of persons in private places without consent for purposes other that the purposes of the data collection. The alleged purpose of the videotaping was to collect evidence of a person entering premises without proper authority. The subsequent showing of the video to a person unable to assist in the carrying out of that purpose was an unlawful use. The subject could seek compensation through civil proceedings but concerns were raised that privacy legislation needed to be reconsidered.

4. Conclusion
With the incorporation of the ECHR into UK law, UK citizens will, for the first time, be guaranteed privacy. The media, also for the first time, will have a guaranteed right of free expression. Legislation is needed to ensure that the parameters of those two rights are understood in respect of intrusive photography, as it is one sphere in which the two rights seem set firmly against one another. To this end all ideas need to be mooted, initiatives ideally coming from within the press. An example of the type of initiative required is the treatment of Princess Diana's sons, Princes William and Harry, both in the way the paparazzi in this country have agreed not to harass them and in the way the boys were not filmed crying at their mother's funeral. Such decisions are to be welcomed. It is not required nor, more importantly, desired to restrict the legitimate news-gathering activities of photographers. From such small acorns large oaks grow. It is to be hoped that perhaps a new 'moral' code might develop within the media before a legislative amendment is made to demonstrate the assumption of responsibility from the press in respect of our freedom.

•	Recognition that the problem of intrusive photography is not endured only by celebrities.
•	Recognition of intrusive photography within the wider privacy debate.
•	Public education both of the wider privacy debate and of the specific problem of intrusive photography.
•	Debate and initiatives to win support from the media itself.
•	Legislation in some form to combat intrusive photography.